El Paso City Council may revisit freedom of info decree

City Rep. Eddie Holguin, right, let his daughter, Abigail Holguin, 6. After a barrage of criticism, the El Paso City Council might go back to the drawing board with a proposed ordinance intended to distinguish between public and private information.

After a barrage of criticism, the El Paso City Council might go back to the drawing board with a proposed ordinance intended to distinguish between public and private information.

Some city representatives still have concerns over privacy and are wary of having personal electronic devices and accounts searched for public records - something First Amendment attorneys and at least one state lawmaker say is a necessary sacrifice to conduct an open and transparent government.

The ordinance would define what is considered official business, set guidelines for the city on what information could be released to the public and determine the difference between private and public communication.

City Council members said the intent of draft ordinance was to create more transparency and clarify the meaning of "transaction of official business," which they claim state law does not clearly define.

Two First Amendment attorneys argue that the proposed ordinance would hamper openness and delay the releasing of records.

State Sen. José Rodríguez, D-El Paso, also said that Texas already has a system for open records and questioned the need for the city to develop an ordinance.

After reviewing the proposed ordinance and considering the criticisms, seven city representatives and the mayor raised concerns and are considering changing or even scrapping the proposed ordinance, which will be heard Tuesday at the council meeting.

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"The goal of the ordinance originally was to draft policy that made us more transparent, that city business should be handled on city accounts and that if you get city business on a personal device, you must forward it to a city account," said city Rep. Susie Byrd, who steered city attorneys to draft the ordinance. "However, I don't think this ordinance accomplishes that in a clear enough way. The language, at times, is restrictive."

The proposed ordinance instructs city employees to immediately hand over official business if it takes place on personal accounts, including electronic devices. That goes beyond state law, said City Attorney Sylvia Borunda Firth, city Rep. Steve Ortega and Byrd.

The proposed ordinance then defines "transaction of official business" as any communication between city employees, volunteers, elected and appointed officials only when they are performing their jobs.

That drew strong criticism from a Houston First Amendment lawyer, Charles Daughtry.

"It seems to me that it would prevent certain records from coming into the public," he said. "What about businesses or working outside of City Hall?"

The proposed ordinance also gives what Daughtry and a fellow First Amendment lawyer, Bill Aleshire, call four vague examples of what city business isn't. The examples are personal communications involving a business, a nonprofit, political and a union.

"It seems pretty strange that you would give a definition by what something isn't," Byrd said.

Daughtry also raised a concern over one part in the proposed ordinance that allows the city to petition a district court if a dispute arises over public or private information. Daughtry said that could present serious delays and cost thousands of dollars.

City Rep. Cortney Niland said that was the opposite of the goal when the council directed the city attorney's office to draft the ordinance.

"I'm concerned," she said. "The whole purpose of this was to make us more transparent, so if we opened a can of worms, then we need to revisit this."
Mayor John Cook agreed.

He said he felt the city needs clarification on official business because state law is vague. Cook did acknowledge that the ordinance may not be clear.

City Rep. Eddie Holguin said he's not surprised that city officials are trying to restrict information.

He reiterated his position that the council and city action during the past six months had been "deceitful" over the decision of building a baseball stadium in Downtown, not honoring petitions questioning the council's actions and not releasing public information. He said he wondered why the council was trying to interfere with state law.

City Reps. Carl Robinson and Emma Acosta said they support being as transparent as possible. City Rep. Michiel Noe did not return a phone call.
City Reps. Ann Morgan Lilly and Ortega want more discussion and are open to changes and fixes. Both, though, wanted to make sure their privacy was protected.

"How do you create more transparency without letting people invade your privacy?" Lilly asked.

Ortega, while acknowledging the importance of transparency, said letting people look through his texts, emails and computer is a violation of the Fourth Amendment, which protects people against unlawful searches and seizures.

The Texas Attorney General's Office has already issued a letter to El Paso that says city business done on personal devices or accounts is open to public records requests.

El Paso is suing the attorney general to try to prevent the release of certain documents that may deal with emails sent to private electronic addresses over the new $50 million Triple-A baseball stadium.

"I feel like the state law is vague, and you can't have a murky law that can possibly hand out criminal punishments," Ortega said. "If you want to go through my personal stuff, you need to have a court order."

Rodríguez, a former county attorney who dealt with thousands of public-records requests, said he understands the privacy concerns. But he stressed that certain concessions must be made by public officials and that he generally agrees with the attorney general's opinion that private accounts are subject to public records laws.

Rodríguez argues that's the whole purpose of the Texas Public Freedom of Information Act, which prevents government from hiding information from its constituents and taking advantage of its powers.

"When you decide to go into public office, you are serving the people," Rodríguez said. "That means making certain concessions. While there are privacy issues - and it's not an easy line - opening your personal records for the transparency of government is sometimes just part of good governance."

Rodríguez said he had never heard of any other municipality proposing an ordinance like El Paso's. The Austin City Council adopted a resolution - which, unlike an ordinance does not have force of law -and did not define official business.

Rodríguez urged El Paso to tread carefully when drafting an ordinance redefining state law because it could cause confusion.

"If we have 200 different ordinances on state law, that takes away the uniformity and consistency, the purpose of this law," he said.

"We have a system that works pretty well. If the public institution is not sure about releasing records, it can ask for an attorney general opinion. If it does not agree with the attorney general, it can sue."

The Texas Freedom of Information Act was written more than 30 years ago, and Rodríguez did acknowledge that legislative updating to include email and text messages is a good idea.

However, he pointed out that attorney general's rulings provide guidance on these issues and that there are many resources on the subject, including handbooks and training.

Cook said perhaps the execution of writing the proposed ordinance was ill-conceived and missed the council's intention.
"You know sometimes these lawyers get paid by the word, and what I would've written would have been much shorter and probably simpler," Cook said.

"So maybe we just need to remember that old phrase, 'Keep it simple, smarty.'"

Evan Mohl may be reached at emohl@elpasotimes.com; 546-6381. Follow him on Twitter @EvanMohl

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